Front Page Titles (by Subject) Locke and the Executive - Literature of Liberty, Spring 1980, vol. 3, No. 1
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Locke and the Executive - Leonard P. Liggio, Literature of Liberty, Spring 1980, vol. 3, No. 1 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Locke and the Executive
“‘The God-Like Prince’: John Locke’s Executive Prerogative and the American Presidency.” Presidential Studies Quarterly 9(Spring 1979): 121–130.
Many American presidents have claimed the right to exercise extraordinary powers to respond to national crises. Nonetheless, the legal status of this claim remains unclear. An analysis of John Locke’s radical theory of prerogative reveals the difficulty of reconciling this privilege with constitutional government. Abraham Lincoln’s frequent abuses of executive prerogative further highlights this difficulty. Finally, we may question whether the U.S. Constitution makes adequate and legal provisions for emergency powers.
John Locke contended that the sluggishness of legislatures and the rigidity of law hamper a government’s efforts to cope with the flux of human affairs. These qualities are particularly obstructive in crisis situations. On the other hand, the flexibility and decisiveness of the executive make it the natural branch of government to deal with an always fluid reality. Indeed, in Locke’s view, government originally consisted of executive privilege alone. Only with the tyrannical practices of “weak princes” did the people turn to the protection of parliaments and laws. Were it not for these abuses, Locke thought, the naturally torpid populace would never have withdrawn its consent from their sovereign’s absolute discretionary powers. Clearly, the unrestricted prerogative envisioned by Locke has little in common with the checks and balances rooted in the American system.
Nonetheless, Abraham Lincoln offered an almost Lockean defense for his suspension of habeas corpus and his assumption of sweeping military powers at the onset of the Civil War. To counter charges of illegality, Lincoln replied that, “whether truly legal or not,” his actions were in response to “a popular demand and a public necessity.” In cases of emergency, Lincoln argued, the President has the right to step outside the constitution and appeal directly to the people as his source of power. Secondly, Lincoln stated that, in order to carry out his oath to “protect and defend” the Constitution, the President might, in dire emergency, violate a provision of the document lest it perish entirely.
To the first of Lincoln’s arguments, Prof. Arnhart replies that, in a constitutional system, it is not public opinion but the Constitution itself which serves as the ultimate source of authority—discretionary or otherwise. As for the second argument, it is, in Arnhart’s view, strange to argue that, in order faithfully to execute the laws of the land, the President may break them.
Arnhart maintains that evidence from both the Federalist Papers and the Constitution itself demonstrates that the Founding Fathers sought to provide for all necessary discretionary powers within the constitutional document. In the American system, however, prerogative was to be a shared responsibility of the executive and legislative branches of government. Thus, in the Constitution’s war provisions, the President’s prerogatives as commander-in-chief are checked by the discretionary powers of Congress to declare war, to raise troops, and to allocate funds.
The framers of the Constitution, Prof. Arnhart asserts, were well aware of the dangers inherent in inflexible restrictions which would be unobservable in times of emergency. The shared prerogative which they devised, however, insured that, even in times of dire crisis, the Republic would remain a republic.